J. C. Pirkle MacHinery Co. v. Lester

Parker, J. 1. The defendant’s first contention is that the general demurrer should have been sustained because the petition failed to allege facts from which it could be determined that any amount was owing by the defendant to the plaintiff, and failed to show any reason why such facts could not be alleged. In other words, the contention is that in the absence of any allegation as to expenses incurred in making the sale, the petition failed to set out a cause of action. We do not think this contention is meritorious. It may be that there were no expenses. The demurrer assumes that there necessarily were some expenses incurred, and to this extent it was a speaking demurrer. Where a cause of action is set out for any amount a general demurrer should not be sustained. Williams v. Bernath, 61 Ga. App. 350 (3) (6 S. E. 2d, 184). The plaintiff alleged that the defendant was indebted to him in the sum of $6,000 and the petition does not show that any expenses were incurred in making the sale. “An allegation in the petition that the defendant [plaintiff] is due a named amount as the unpaid purchase-price is not subject to demurrer upon the ground that it is not alleged what amounts the defendant has paid upon the automobile, and when such payments were made.” C. I. T. Corp. v. Davis, 49 Ga. App. 634 (2) (176 S. E. 821). Whether or not there was any expense incurred in making the sale would seem to be a matter of affirmative defense, which the defendant could plead and which it was not necessary for the plaintiff to negative in his petition. See, in this connection, Williams v. S. A. L. Ry. Co., 165 Ga. 655, 664 (141 S. E. 805); Yatesville Banking Co. v. Fourth National Bank, 10 Ga. App. 1 (2) (72 S. E. 528). General allegations are sufficient as against a general demurrer. Morgan v. Limbaugh, 75 Ga. App. 663 (44 S. E. 2d, 394). If the defendant desired allegations as to expenses, it should have sought such information by a special demurrer and not by a general demurrer. The allegations of the petition, that the defendant had all the records pertaining to the sale and calling upon the defendant for the production of such records into court to be used as evidence by the plaintiff, put the defendant on notice that if, as a matter of *515 fact, any expenses had been incurred in making the sale that fact could be developed upon the trial. If a petition sets forth a cause of action either ex contractu or ex delicto, it will withstand a general demurrer. Citizens & Southern Bank v. Union Warehouse &c. Co., 157 Ga. 434 (6) (122 S. E. 327); Wometco Theatres Inc. v. United Artists Corp., 53 Ga. App. 509, 511 (186 S. E. 572). In determining whether a cause of action is set forth as against a general demurrer the courts have generally stated that all a plaintiff need allege is facts showing the existence of a duty owing by the defendant, a violation of that duty and damages resulting from that violation. 41 Am. Jur., Pleading, § 78. We think the petition in this case successfully meets this test. The petition is not so vague and indefinite as to come within the rule stated in Johnson v. Edwards, 147 Ga. 438 (94 S. E. 554). 2. Defendant further contends that the petition failed to allege that the contract was in force at the time of the sale. We do not agree with this contention. The petition alleged: “The said defendant company by its president, J. C. Pirkle, acting under the agreement had with plaintiff, did find a buyer for the said ‘twenty whiting cards’.” Such a general allegation as to the existence of the contract at the time of the sale is sufficient as against a general demurrer. 3. Defendant’s third contention is likewise without merit. The contention is that the petition fails to describe the property with sufficient certainty in that it alleges that the cards were located at Newnan “or” Whitesburg, Georgia, and the defendant is unable to tell whether the petition is referring to the machinery in Newnan or the machinery in Whitesburg. The same is true as to the allegations respecting the owner, A. L. Fuller, who allegedly lived in Whitesburg “and/or” Newnan. Georgia. Even if the petition in this respect is subject to criticism, we are of the opinion that such defects should have been objected to by special demurrer and not by general demurrer as in this case. The trial court did not err in overruling the general demurrer to the petition as amended. This case was considered by the whole court as provided by the act approved March 8, 1945, Ga. L. 1945, p. 232. Judgment affirmed. Sutton, C. J., MacIntyre, P. J., Gardner and Townsend, JJ., concur. Felton, J., dissents.